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Law360 (April 30, 2020, 6:16 PM EDT) --
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| Richard Kelley |
First codified in the United Nations' 1951 Convention and Protocol Relating to the Status of Refugees Refugee Convention,[1] asylum was later codified into U.S. domestic law through the Immigration Nationality Act in 1980. The goal was to provide a safe-haven for those who would otherwise face persecution in their homeland.
In 1996, however, the United States Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act, or IIRIRA, which fundamentally changed the landscape of asylum law. Most notably, IIRIRA created a new requirement that those entering the country had to apply for asylum within one year of arriving in the United States.
While this one-year bar has created exceptional challenges for individuals seeking asylum since its enactment, it is newly relevant to practitioners and applicants in light of the COVID-19 pandemic.
COVID-19 has led to various stay-at-home orders and other endeavors to enforce social distancing in an effort to slow the spread of the virus, including the cancellation of most in-person appearances for immigration proceedings such as all immigration court hearings for nondetained hearings scheduled through May 15,[2] and all in-person interviews with U.S. Citizenship and Immigration Services schedule through June 4.[3] However, USCIS has not released a policy directly addressing the one-year deadline for asylum applications.
Asylum seekers may miss this rigid one-year deadline for several reasons: insecurity about, discomfort with, or lack of openness about their identity; immense emotional and psychological trauma caused by experiences related to their identity; or even lack of awareness that they can pursue asylum at all.
However, stay-at-home orders, business closings and social distancing further complicate an asylum seeker's effort to meet this one-year requirement, including challenges created by lack of access to public transportation, legal representation or technology. Even items as simple as locating a place to secure passport photographs or notarization have become more complex.
And while at least the requirement of original wet signatures has been temporarily relaxed during the duration of the pandemic,[4] allowing for individuals to sign and scan documents rather than sign in person, there have been, as of the writing of this article, no relaxations on various other requirements. For example, asylum seekers are required to attach passport photographs that are no more than 30 days old as of the date of submission and are still required to submit multiple copies of their completed application via mail.[5]
Continuing to meet these requirements obligates asylum seekers — many of whom already face barriers to access — to jump through even more hoops to preserve their opportunity to explain why they fear returning to their home country.
Exceptions to the One-Year Asylum Bar
While the one-year deadline has not been directly addressed by USCIS, it is not absolute. There are two ways that an asylum seeker can overcome the one year bar to asylum: (1) the existence of a changed circumstance which materially affects the applicant's eligibility for asylum, or (2) an extraordinary circumstance related to the delay in filing the application within the first year of entry.
If an asylum seeker is able to demonstrate that he or she falls into one of these two exceptions "to the satisfaction of the asylum officer [or] immigration judge" the applicant must then show that the application was filed within a "reasonable period of time" after the changed or extraordinary circumstance.[6]
What might be a change in circumstance?
If asylum seekers can show "the existence of changed circumstances which materially affect the applicant's eligibility for asylum," then they will only have to show that they applied within a reasonable period of time after the change in circumstance.
The regulations indicate that a change in circumstance may include changes in conditions of the home country; changes in the applicant's circumstances (including changes in applicable U.S. law and activities the applicant becomes involved in outside the country of feared persecution); or, if the applicant is a dependent in another person's pending asylum application, the loss of the spousal or parent-child relationship.[7]
While a change in circumstance may only apply in limited circumstances related to COVID-19 (the most obvious situation being the passing of a primary asylum applicant to which one's client is a derivative applicant), practitioners can consider whether a change in circumstance did impact a client.
What might be an extraordinary circumstance?
A second option for asylum seekers, more likely applicable to COVID-19 related delays, is to demonstrate that there is an extraordinary circumstance related to the delay in filing the application.
The regulations suggest several potential extraordinary circumstances that could justify a delay in filing, including serious illness or mental or physical disability, legal disability, ineffective assistance of counsel, maintenance of Temporary Protected Status or another lawful status, or a technical error. This list provided in the regulations, like the list of changes in circumstance, is not exhaustive.[8]
Asylum seekers who do miss the one-year deadline because of COVID-19 may be able to seek relief by arguing that there was an extraordinary circumstance. Since we have not experienced a pandemic like this in the history of the Immigration Nationality Act, there is no direct guidance on how USCIS or an immigration judge will weigh the reason for the delay.
While some delays are expressly mentioned in the regulations (for example, being incapacitated due to infection from COVID-19, where the individual was in the hospital for a long-term stay, would be likely to fit within the "serious illness" exception), other delays may not be so obvious. Practitioners are left to wonder, for example, whether being unable to access passport photos or inability to access transportation to get to the post office or lack of access to technology or public printers would be a sufficiently "extraordinary circumstance."
USCIS did directly address flexibility for late applications related to delays in extension/change of status filings, in stating:
USCIS reminds petitioners and applicants that it can consider delays caused by the COVID-19 pandemic when deciding whether to excuse delays in filing documents based on extraordinary circumstances.
Under current regulations and as noted on our Special Situations page, if a petitioner or applicant files an extension of stay or change of status request (on Forms I-129 or I-539) after the authorized period of admission expires, USCIS, in its discretion, may excuse the failure to file on time if it was due to extraordinary circumstances beyond their control, such as those that may be caused by COVID-19. The length of delay must be commensurate with the circumstances. The petitioner or applicant must submit credible evidence to support their request, which USCIS will evaluate on a case-by-case basis. These special situations have been used at various times in the past, including for natural disasters and similar crises.[9]
While the guidance from USCIS does not specifically address asylum requests nor provide what types of delays caused by the COVID-19 pandemic would be considered by USCIS, nor indicate how practitioners are supposed to interpret the statement, "the length of delay must be commensurate with the circumstances," it does give at least a starting point to practitioners to make the argument.
Other avenues of arguing extraordinary circumstance may also be available. Asylum seekers may also have experienced trauma in their home country due to their persecution. Some advocates have argued successfully that this is an extraordinary circumstance that justifies an application outside of the first year. The Matter of J-A- was an important step forward in this area.[10]
The advocates in Matter of J-A- successfully argued that extreme sexual and physical violence against J-A- because of his sexual orientation caused extreme and chronic post-traumatic stress disorder, which justified his late application (nearly 10 years after his entry into the United States). This, combined with the fact that he entered the U.S. as a legal minor, led Judge John Bryant of the Arlington Immigration Court to conclude that there was an extraordinary circumstance justifying the late filing. But it is important to note that arguments relying on PTSD or other mental health conditions are not always successful.
COVID-19, particularly where the additional stressors caused by COVID-19 exacerbate prior trauma, may be able to further support an argument that psychological trauma justifies the delay based on extraordinary circumstance.
Reasonable Period of Time
If asylum seekers demonstrate that there has been a change in circumstance or an extraordinary circumstance, they are permitted to file the asylum application within a reasonable period of time. There is no specified reasonable time in IIRIRA, but, as a practical matter, this has often been interpreted restrictively.
This reasonableness standard is echoed in USCIS' April 13 alert regarding application delays, where it warns that "the length of delay must be commensurate with the circumstances."
Important Considerations for Practitioners
The one-year deadline still applies to asylum requests during the COVID-19 pandemic, so make every effort to get the application in on time.
While there may be legal arguments available to justify the filing of an asylum application late due to COVID-19, it is still likely the ideal for any asylum seeker to apply within the one-year deadline. This avoids a potential additional hurdle where the applicant's request for asylum could be denied based on lack of timeliness.
If the one-year deadline is missed by an applicant, there may still be an opportunity to apply for asylum based on a change in circumstance or extraordinary circumstance exception.
If the one-year deadline is not able to be met, there is still hope that the applicant's asylum request may be heard. It is important to document any delay — e.g., medical records of the applicant if they were hospitalized, inability to access certain necessary resources.
It is the burden of the applicant to demonstrate (1) the existence or occurrence of the extraordinary circumstance; (2) that the circumstance directly relates to the failure to file the application within the given one-year period; and (3) that the delay in filing was reasonable under the circumstance.[11]
Move as quickly as possible, and document as much as possible.
Even if an applicant can demonstrate a changed or extraordinary circumstance, the application must be submitted within a reasonable amount of time. Therefore, any practitioner should be aware of this reasonable time period and attempt to submit the asylum application as soon as possible and document any additional causes for delay.
Richard Kelley is the managing attorney of the immigration and child advocacy practices at the DC Volunteer Lawyers Project and the volunteer legal program director for Center Global of the DC Center for LGBT Community.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the organization or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] UNHCR, 1951 Convention and Protocol Relating to the Status of Refugees Refugee Convention. https://www.unhcr.org/3b66c2aa10
[2] U.S. Department of Justice, Executive Office for Immigration Review, https://www.justice.gov/eoir/eoir-operational-status-during-coronavirus-pandemic.
[3] U.S. Citizenship and Immigration Services, "USCIS Offices Preparing to Reopen on June 4" (24 April 2020). https://www.uscis.gov/news/alerts/uscis-offices-preparing-reopen-june-4.
[4] U.S. Citizenship and Immigration Services, "USCIS Announces Flexibility in Submitting Required Signatures During COVID-19 National Emergency" (20 Mar 2020). https://www.uscis.gov/news/alerts/uscis-announces-flexibility-submitting-required-signatures-during-covid-19-national-emergency
[5] U.S. Citizenship and Immigration Services, I-589 Application for Asylum and for Withholding of Removal Instructions. https://www.uscis.gov/i-589
[6] INA § 208(a)(2)(D); 8 C.F.R. § 208.4(a)
[7] 8 C.F.R. § 208.4(a)(4)
[8] 8 CFR §208.4(a)(5)
[9] U.S. Citizenship and Immigration Services, "COVID-19 Delays in Extension/Change of Status Filing" (13 April 2020). https://www.uscis.gov/news/alerts/covid-19-delays-extensionchange-status-filings
[10] Matter of J-A-, A XXX-XXX-234, Arlington Immigration Court (April 27, 2012)
[11] In re Y.-C.-,23 I. & N. Dec. 286, 288 (B.I.A. 2002); 8 C.F.R.§208.4(a)(5)
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